Was Antonin Scalia a libertarian? The question seems laughable, right? After all, it’s Anthony Kennedy who’s at the heart of the Supreme Court’s libertarian moment (such as it is), not that arch-conservative who called the ruling striking down the Defense of Marriage Act “legalistic argle-bargle.”
And in truth, one can presume that the first Italian-American justice’s personal views are about as socially conservative as any modern public official. But so what? There are plenty of religious libertarians, and policy issues like abortion and the death penalty split the liberty movement.
Ah, but Scalia, who died yesterday at the age of 79, based his judicial opinions on those conservative views, right? Well, with the possible glaring exception of Gonzales v. Raich—the 2005 medicinal-marijuana case in which he went with the Drug War over federalism—it’s hard to point to such corruption. (Democratic partisans also invoke Bush v. Gore, but that case is so sui generis that I’ve come to appreciate the Court’s instruction that nobody should cite it for any legal point ever.) Raich is no small case—it pushed the scales from my eyes about Nino, as NFIB v. Sebelius did regarding John Roberts—but that’s not bad for a 30-year career, especially given the flag-burning and criminal-procedure cases where surely his policy preferences lay elsewhere.
Indeed, writes Ilya Shapiro of the Cato Institute, Scalia based his entire revival of originalism and textualism on the idea that judges are bound by the written text and aren’t free either to impose their own views or to divine some mythical legislative intent.
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